Collaborative Law Makes Messy Divorce Thing of the Past

Married for 10 years, Carol had been through years of couples counseling with her husband to no avail. “We had what you might call irreconcilable differences,” she said.

Agreeing to proceed with a divorce, they shared one wish — the process would not be an ugly contentious one that would harm their 7-year-old daughter. “We did not want to be caught in a whirlpool of the court system,” she said.

Carol and her husband both engaged collaborative attorneys, a new breed of lawyers trained to cooperate rather than fight.

Worlds apart from traditional family law, collaborative law brings opposing parties and their lawyers to the table with the goal of coming to an agreement and settlement terms without going to court.

In fact, in collaborative law, couples agree in advance to spend their time, effort and money on settling their issues, not on litigation. Attorneys and any other outside professionals brought into the process also agree in advance that they will not go to court. Unlike litigation, which can take up to two years, collaborative law divorces take about 6 months on average to hammer out agreements between couples.

“The idea of settlement is not new with attorneys, but joining the opposition, that’s a revolutionary idea,” said David Weinberg, a family law specialist for 35 years who founded the Collaborative Law Association, a nonprofit educational association to promote and teach collaborative law. “Lawyers pool together their experience and talent and use the same energy to fashion a win-win situation. That’s very unusual in our law system.”

A strategy known as Collaborative Divorce goes further, using not only collaborative lawyers but an entire team of mental health professionals, child psychologists and financial advisers to help guide a couple through the divorce process. “Everyone is roped together and it doesn’t help for people to push or pull,” said Peggy Thompson, a clinical family psychologist who co-wrote a book with her colleagues called “Divorce: A Problem to Be Solved, Not a Battle to Be Fought.”

“In collaborative divorce, we have open communication between the partners and their lawyers. Meetings are always four-way. It’s a negotiating team,” said Thompson, whose Collaborative Divorce team has trained about 1,000 lawyers and has processed over 300 divorces using the Collaborative Divorce approach. “We teach clean, businesslike communication between the couple.”

If the couple are not ready keep their emotions in check, they are referred to counseling until they are. “The dysfunction in the marriage carried into the divorce is often what makes the divorce process drag on and on,” said Thompson. “Divorce is, in essence, a business transaction. To get anything done, you need to keep emotions out of it.” Teaching couples to communicate effectively has had unexpected benefits, she said. “It’s not our goal, but we’ve had a number of reconciliations.”

Talia Katz, a partner in the Phoenix law firm of Gladding, Bankoff & Katz, just finished her Collaborative Divorce workshop training. “This is a whole other planet compared to what we usually do,” said Katz, who has been a traditional family law attorney. “Traditional family law is not for me, or any human being for that matter. At the end of each case the attorney goes home, leaving behind scarred damaged people in pain. The traditional process has a take-no-prisoners approach, which is not appropriate for families.”

The team approach is what is so vastly different from traditional law, said Katz. “In traditional family law, if you refer your client to counseling, it’s very risky because that could be used against them in court,” Katz said. “The big winners (in collaborative law divorce) are the kids. Because when this is done properly the parents establish a relationship that will enable them to co-parent.”

“We are hired solely to get the (divorce) case settled on a civilized level,” said Pauline Tesler, a collaborative lawyer with the law firm of Tesler, Sandmann, & Fisherman in San Francisco. “If we can’t do that, we’re fired. This has very profound effect on the lawyers.” For example, in traditional law, if negotiations reach an impasse, the case usually goes to court to settle it. “In collaborative law, if we reach an impasse the lawyers are trained to be quiet and keep quiet. Suddenly everybody realizes that nobody wants to go to court, and it never fails, a solution emerges,” she said. “There hasn’t been anything like this in dispute resolution. And it works.”

After all, what most divorcing couples want is a “good divorce,” said Tesler, whose very first collaborative law divorce case in 1994 ended in a reconciliation. “There are more bad divorces than there need be. That’s a result of the traditional divorce process. Because once you’ve signed court papers, those first papers are the death bell. It’s full of horrible stuff. And its very hard to go back once that happens.”

Carol, who started the collaborative law divorce process in December 1999 and is now finalizing her divorce 7 months later, said that if she had gone through a traditional divorce, things between her and her ex-husband would have been much different. “I think we would have built on the bitterness we felt toward each other and used it to attack one another,” she said. “It would have been like a hornet’s nest.”

But Carol says she likes to call her divorce “the most amicable divorce in history.” Their financial agreement protects her ex-husband, who was between jobs during the divorce process, should he make more money, and protects her in case he should lose his job or make less money. “In a traditional divorce, untangling those details would have landed us in court over and over again.” Aside from the financial agreements, Carol said that collaborative law divorce protected her daughter’s relationship with her father by helping the couple learn to put aside their emotional differences to reach nonhostile agreements that both could live with. These skills are essential for co-parenting, Carol said. “We have to communicate better than when we were married,” she said. “We both feel happy and we’re willing to be friends,” she said. “When it was all over, there was completeness, even sweetness to it all. Who ever says that about divorce?”

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Marcia Passos Duffy is a free-lance writer based in New England who writes frequently on business, investment and farming issues. She is a writer for the American News Service (ANS), a project of the Center for Living Democracy.